The D.C. Circuit is authorized to have 12 judges. With last month’s Senate confirmation of Brett Kavanaugh to the 10th seat, it now has 10 sitting judges. Senator Cornyn urged that the White House get the new nominees for this and other vacancies up soon, and also stated his belief that both vacancies on the D.C. Circuit should be filled. He also, somewhat reluctantly, agreed that the D.C. Circuit is “first among equals” among the federal circuits becuase it handles the key cases involving the federal regulatory state, the agencies of which have such incredible power over the lives of ordinary Americans and which are usually indifferent at best to issues of federalism, private property and regulatory costs.

When Senator Sessions followed, however, the real issue came out. Senator Sessions is an opponent of filling the 12th seat, although he is willing to support a competent nominee for the 11th seat. Senator Sessions does not believe the workload of the D.C. Circuit justifies a 12th judge at a cost of more than a million dollars a year –salary, benefits, staff, clerks overhead etc go into that figure.

While I was happy to hear that Senator Sessions will support moving forward with the process of confirming one more judge, I am sorry to hear him argue against filling the 12th seat. Though I was low on time, I pointed out that a 12th judge increases the likelihood of a litigant facing a three judge panel made up of sound originalist judges by a significant percentage, and that it was not conservative to undo via refusal the legislative direction of a previous Congress and president.

Of the 10 “active” judges, two were appointed by President Reagan, two by the first President Bush, three by President Clinton, and three by the current President Bush.

There are four “senior” circuit judges, who can hear and decide cases as well, (one appointed by President Clinton and three by President Reagan), so the pool from which three judge panels come is actually larger than the 10 “active” judges. (“Senior status” judges do not participate in en banc hearings of the entire court.)

Obviously even one additional sound appointment to this court would have huge and welcome effects on the federal administrative law and many other areas of law as well. I hope colleagues and constituents will engage Senator Sessions –a fine and very smart senator with a distinguished record– in a conversation about the 12th seat and persuade him that the million dollars is well invested in a court with so much power.

But of course the White House has to get the nominee for the 11th seat up to the Hill.

Here’s the exchange with Senator Cornyn:

HH: Senator Cornyn, of those…the 11th and 12th seats on the D.C. Circuit which are vacant, it’s a 12 seat court for the benefit of our audience, not nine like the Supreme Court. Have any colleagues of yours expressed to you the view that that’s too many judges, and at least one of those ought to be left unfilled?

JC: Well, I have heard some concerns expressed that the work load for the court does not justify additional judges, but it’s been mainly just conversation, nothing specific.

HH: It would be very uncharacteristic of a conservative to simply not comply with a law that had been passed by both chambers, correct?

JC: Absolutely.

HH: And so, I hope that if you get a bunch of nominees, do you think the Judiciary Committee will put the D.C. Circuit at the front of the line?

JC: Well, I think it certainly deserves to be filled, that vacancy. But I can tell you, Hugh, that there’s a lot of judicial emergencies that exist around the country, as designated by the judicial conference that have been gone wanting for a long time. So I’d be loathe to elevate one over another, but yeah, they all need to be filled.

HH: But Senator, at the risk of pushing you, the D.C. Circuit is, you know, first among equals among the appellate courts, correct?

JC: Well, that’s what they say. It’s of course the place where a lot of folks get elevated to the United States Supreme Court, and it’s the court that has jurisdiction over a lot of the administrative bureaucracy here in Washington. It’s a very, very important court. And I think you’re right, they should be filled.

HH: I appreciate it. Senator Cornyn, great work on the Hawaii bill, too bad on the marriage amendment, but you’ll live to fight again, and thanks for the work on the Judiciary Committee.

JC: Thanks, Hugh.

Here’s the exchange with Senator Sessions:

HH: All right, now I also want to talk to you, Senator, about the D.C. Circuit. There are two vacancies, the famed 11th and 12th seat. Do you think judges should be confirmed to both of those seats, Senator Sessions?

JS: I don’t, Hugh. I’ve opposed that for some time. It has the lowest case load of any circuit in America by far, about half the national average, and it’s declining. I’m prepared to approve maybe one of the nominees, but I don’t think we need to fill both of those seats. We don’t have a dime to waste. It costs about…over a million dollars a year to field a single circuit judge slot, and we need to start looking for ways to save money…

HH: Senator, can I argue that with you a little bit?

JS: Yeah.

HH: I mean, when the Congress passes twelve, and it’s the second most important court, and we could get two more conservatives on there, the odds of getting a fair-minded, originalist panel increased by 10% for a litigant, if you have another bush judge up there. And given that the Congress has already approved it, isn’t it sort of extra-legal not to fill that which has been approved?

JS: Well, Congress has approved it. We don’t have to fill it. In fact, we need to just eliminate it, and take that money, and apply it to some areas where we’re going to have to add judges. Senator Grassley and I, back when President Clinton was in office, we were on the subcommittee that deals with case loads for courts, and I now chair that subcommittee. And we concluded that we did not need that slot then.